Service is a fact, and facts must be proved. Order 6 Rule 18 of the National Court Rules 1983 prescribes how.
Order 6 Rule 18
An affidavit of service of a document shall state —
by whom the document was served; and
the day of the week and the date on which it was served; and
the manner of service.
Because several rules turn on it. Rule 4(1)(a) permits leaving a document at an address only on a day on which the Registry is open. Section 7(2)(b) of the Claims By and Against the State Act 1996 excludes Saturdays, Sundays and public holidays. And time under Order 1 Division 3 is computed from the date of service.
Stating “on Tuesday, 12 March 2026” puts both facts beyond argument on the face of the affidavit.
The server must depose
The affidavit must be sworn by the person who actually served. A lawyer cannot depose to what a clerk did — that is hearsay about the central fact.
If the clerk has since left, or is unavailable, you are in difficulty. Have the affidavit sworn promptly after service, not months later when default judgment is being prepared.
For the purpose of the proof of service, evidence of a statement by a person of his identity, or that he holds some office, is evidence of his identity or that he holds that office.
So the server may depose: “I asked the man whether he was Peter Namaliu. He said that he was.” That is admissible evidence of identity. Likewise: “She said she was the personal secretary to the Solicitor-General.”
Say exactly what you did
| Manner | What the affidavit should say |
|---|---|
| Personal service — O 6 r 3(1) | How the defendant was identified; that a sealed copy was handed to them; where |
| Refusal — second limb of r 3(1) | That the copy was put down in their presence and that they were told the nature of the document, with the words used |
| Company — Companies Act s 431 | Which paragraph was relied on; exhibit the company search showing the registered office or director |
| The State — Claims Act s 7 | Which officer; whether personal or left with the personal secretary; and the time, to show the statutory hours were met |
| Ordinary service — O 6 r 4 | The address; that it is the address for service; that it was left between 9 a.m. and 5 p.m. on a day the Registry was open; or details of posting |
| Business name — O 5 r 35 | Who the document was left with, that they appeared engaged in the business and 16 or over; or the certified-mail details |
| Substituted service — O 6 r 12 | Exhibit the order; depose that each step it specifies was taken; exhibit the advertisement or message |
Always exhibit a copy of what was served — the sealed writ, the order, the notice. It answers the argument that something other than the sealed copy was handed over, which Order 6 Rule 2(2) requires.
Where you need no affidavit
- O 6 r 2(3) — where a defendant serves a notice of intention to defend, the originating process is taken to have been served personally on the date that notice is filed, or an earlier proved date.
- O 6 r 4(3) — postal service is deemed effected at the time the document would be delivered in the ordinary course of post, unless the contrary is proved.
- O 6 r 8 — a solicitor’s note that he accepts service makes the document duly served on the date of the note.
- O 6 r 14 — where personal service is not required and the person is in default of a notice of intention to defend, or has no address for service, the filing of the document has effect as service.
- O 6 r 12(3) — a substituted-service order may deem the document served on a specified event or after a specified time.
- O 6 r 13 — the Court may direct that a document informally served be taken to have been served on a date specified in the order.
Where the affidavit is used
Default judgment under Order 12 Division 3 depends on proof that the defendant was served and has not responded within time. The affidavit of service is the foundation of the application, and it is scrutinised. A defective affidavit is one of the commonest reasons such applications fail.
It is also the basis for an application for contempt, where personal service of the order must be proved; for enforcement; and whenever the other side does not appear.
A defendant who says they were never served will apply to set the judgment aside. The Court then compares their affidavit with yours. Detail wins: an affidavit that names the person served, records what was said, states the time and place, and exhibits the sealed document is far harder to displace than one that says only “I served the defendant”.
And never swear an affidavit of service you cannot support. If service is doubtful, the honest and effective course is to apply under Rule 12 or Rule 13.
General requirements for affidavits are in Order 11 Division 3. See affidavits in support and how to swear an affidavit.
Sources
- National Court Rules 1983 — O 1 Div 3; O 5 r 35; O 6 rr 2–5, 8, 12–14, 18; O 11 Div 3; O 12 Div 3
- Companies Act 1997 — s 431
- Claims By and Against the State Act 1996 — s 7
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.